Moderator
-
Joined
-
Last visited
Posts posted by Moderator
-
-
So, you think that Other Trasactions are exempt from bid protest jurisdiction at the Court of Federal Claims? Not so fast.
I posted this protest opinion on the Home Page on Friday. If you handle Other Trasactions, you may want to take a look at the Opinion at Independent Rough Terrain Center, LLC v. U. S. and Taylor Defense Products, LLC, No. 24-160, July 16, 2024.
QuoteIn sum, the Solicitation here concerns an OT follow-on production contract for goods and services, and nothing in the OT statutes expressly removes OT follow-on contracts from the purview of this Court’s jurisdiction. The Court holds that it has jurisdiction to review a follow-on production contract that seeks to acquire property or services for the Government, whether the agency issued the follow-on solicitation under OT authority or under FAR authority. Accordingly, the Court denies the Government’s and Taylor’s Motions to Dismiss on Rule 12(b)(1) grounds because the Court finds it has subject-matter jurisdiction over the protest.
-
This is now and in our future. Watch: Unknown Killer Robots on Netflix. If you still think The Magnificent Seven is only a cowboy movie - you have some catching up to do. Also see Whoever leads in artificial intelligence in 2030 will rule the world until 2100
-
-
-
-
The reason I posted these 3 cases was to let you know that these cases exist and that they may affect contracting rules in the future. Percipient may go away because it was issued by a 3-judge panel and all the circuit judges may want to take a look at it themselve (en banc). At least you are aware of the now. I served my purpose.
-
Here is a bunch of stuff from SCOTUS. Maybe you can find where the money came from. Also, why is it in federal court before a federal jury prosecuted by a federal prosecutor, etc.
During the one year period ending October 2016, the City of Portage, Indiana, received benefits in excess of $10,000 under a Federal Program involving a grant, contract, subsidy, loan, or other form of Federal assistance. p. 1.
-
Yes, he was convicted by a federal jury for accepting a gratuity. He appealed his conviction and the conviction was upheld by a court in the 7th circuit.
I assume the firetrucks were federally funded or partially federally funded. Again, I assume that prosecutors used the gratuity provision to convict him because they didn't have enough to convict him of bribery. I am not aware of any state court that went after him for either bribery or gratuity.
This is a 10-year old case from Northern Indiana. The Chicago papers did cover the case but they want users to pay for a view.
This was about $13,000. As I mentioned, I believe the threshold for making this federal is too low.
-
In simple terms, this opinion deals with interpretation of law. Earlier, agencies that adminstered a law were authorized to interpret unclear parts of a law. This opinion shifts legal interpretaion back to the courts and not agencies. We know that agencies such as SBA, USDA, DOE, and EPA write regulations to implement laws for contracting. How will that affect future regulations? I don't know. I added a blog entry that may help explain.
This entry is by Morrison Foerster LLP and entitled The End of Chevron Deference: What It Means for Government Contractors.
-
-
On 7/5/2024 at 8:51 AM, joel hoffman said:
Why would the federal government define a uniform standard for post action gifts to non-federal employees when there are various non-federal standards or rules.
One of the things I do before posting any press release on the Home Page is to check if it involved federal funds. If it doesn't, I may not post it unless the case threatened the United States or it angers me for another reason.
18 U.S. Code § 666 (a)(1)(b) states
Quote(b) The circumstance referred to in subsection (a) of this section is that the organization, government, or agency receives, in any one year period, benefits in excess of $10,000 under a Federal program involving a grant, contract, subsidy, loan, guarantee, insurance, or other form of Federal assistance.
When you take funds from the federal government you follow the federal government's rules. However, I think that $10,000 seems too low a threshold to be brought up on federal charges. Maybe it should be $100,000 or much more.
18 U.S. Code § 666 (a)(1)(B) states
Quote(a) corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government, or agency involving any thing of value of $5,000 or more; or
I disagree with the opinion of the Court. In my opinion, the law includes gratuities. Again, look at the $5,000. I woud raise it to $50,000 at least and we would never have heard of Portage, Indiana.
QuoteThe government never established/proved that there was any action or agreement between Peterbilt and the mayor to establish a bribe or connected gratuity to influence the selection of Peterbilt.
James Snyder was convicted by a federal jury, On appeal, the 7th circuit upheld his conviction.
-
This case involves James Snyder, who is the former mayor of Portage, Indiana. In 2013, while Snyder was mayor, Portage awarded two contracts to a local truck company, Great Lakes Peterbilt, and ultimately purchased five trash trucks from the company for about $1.1 million. In 2014, Peterbilt cut a $13,000 check to Snyder.
The FBI and federal prosecutors suspected that the payment was a gratuity for the City’s trash truck contracts. But Snyder said that the payment was for his consulting services as a contractor for Peterbilt. A federal jury ultimately convicted Snyder of accepting an illegal gratuity in violation of 18 U. S. C. §666(a)(1)(B). The District Court sentenced Snyder to 1 year and 9 months in prison. On appeal, Snyder argued that 18 U. S. C. §666 criminalizes only bribes, not gratuities. The Seventh Circuit affirmed Snyder’s conviction.
On June 26, 2024, the U. S. Supreme Court Justices, Kavanaugh, Roberts, Thomas, Alito, Gorsuch, and Barrett. reversed the judgment of the U. S. Court of Appeals for the Seventh Circuit.
-
Quote
A special column by the Hon. Matthew H. Solomson, Judge, U.S. Court of Federal Claims. Judge Solomson has served on the Court since 2020. He previously practiced Government contracts law in private practice, at the U.S. Department of Justice, and in-house. He is the author of COURT OF FEDERAL CLAIMS: JURISDICTION, PRACTICE, AND PROCEDURE, a legal treatise published by Bloomberg BNA in 2016.
Variety may be the spice of life, but in the law—and for trial courts, litigators, and anyone having to comply with particular legal rules—we crave uniformity, consistency, and predictability. Judges also try their best to get the correct outcome, although at least one party is almost certain to disagree that such goal has been achieved in any particular case. Since 2006, I have been on a journey to get the “interested party” standing question right. This is a threshold issue in so-called “bid protests” before our court. But my effort to understand and apply the law, as of late, has resulted in what one might call judicial whiplash. If you're guessing that my most recent source of neck pain is Percipient.ai, Inc. v. U.S., ——— F.4th ———, 2024 WL 2873163 (Fed. Cir. June 7, 2024), you're right.
The winding road to our jurisprudential destination—and where are we, precisely?—is worth retracing as it illustrates the uncertainty the bench and bar often face when a U.S. Court of Appeals for the Federal Circuit panel decision breaks new ground or heads off in an unexpected direction.
-
Recently, I read another example of courts expanding their involvement in the contracting process. When I went back to post it here, I could not find the opinion. Here is the gist of it. It may have been the CAFC reviewing an opinion by the COFC. Anyway, the court concluded that to protest a debarrment action, a protester must use a federal district court. I didn't have time to check the judge's reasoning.
My position is that all courts must be removed from the federal contracting process. That is going to require sifting through the words in the Tucker Act, etc. I believe there should be an opportunity to appeal any decision or opinion after we eliminate the courts from the process.
In the case of a GAO initial bid protest decision, it would go to GAO for reconsideration as an appeal - by another procurement attorney.
I the case of a dispute, if goes from a contracting officer's final decision to one of the Boards of Contract Appeals for any appeal--and that's it. Yeah, there is more than two BCAs but that's ok. We don't need courts searching for more work for other courts.
Once we get rid of the courts, we can put page limits on decisions/opinions.
-
It is a longstanding belief that effective competition yields best value contract pricing and quality. And it is generally believed that clear communication between buyer and prospective sellers is essential for effective competition. If those beliefs are true, then we must question whether the Government is getting effective competition and best value in its procurements. Let's consider a
simple case.Please Read: Simplification, Reform, Streamlining, and Innovation: The Government Is Immune To Those Things by Vernon J. Edwards
-
I'm surprised this opinion has not drawn much attention here. It's 59 pages and is from the Court of Appeals for the Federal Circuit.
From an entry by Blank Rome LLP that explains the above opinion. Open the Floodgates: Divided Federal Circuit Panel Expands Access to Court of Federal Claims.
-
-
If anyone can find the contract that is expiring early, please let me know. I'd like to see the justification for ending it.
Thanks.
_____________________________
6/29/24
The new solicitation provides for a 1 year base period and 9, 1-year options. With that in mind, I assumed that one of the options on the current Maximus contract was not exercised. Apparently, that is correct. In the current solicitation, there appears to be a Q and A for offerors on the current solicitation. Q and A #70 states:
QuoteQuestion: Has CMS elected not to exercise additional options on the Maximus contract and is this why the contract is being re-competed 5 years before its potential end date?
Answer: CMS has elected not to exercise all options on the existing call center contract.
Q and A # 72
QuoteQuestion: Please describe your level of satisfaction with your current or recent vendor(s) for the same purchasing activity, if applicable.
Answer: The incumbent has been performing satisfactorily.
Q and A # 73
QuoteQuestion: Who is the incumbent, and how long has the incumbent been providing the requested services?
Answer: Maximus Federal Services is the incumbent. Maximus has operated the CMS call center since 2013.
Q and A # 90
QuoteQuestion: In reference to Section H.16, Labor Harmony Agreement:
- (A) Please confirm if there is an existing Labor Harmony Agreement in place on the current contract.
- (B) If there is an existing Labor Harmony Agreement in place, please provide a copy.
- (C) If there is an existing Labor Harmony Agreement in place, please provide which labor union is party to the Agreement.
Answer: There is currently no existing Labor Harmony Agreement in place on the current contract.
Q and A # 91
QuoteQuestion: In reference to a Collective Bargaining Agreement or any other labor contract with a labor organization:
(A) Please confirm if there is a Collective Bargaining Agreement in place on the current contract.
(B) If there is an existing Collective Bargaining Agreement in place, please provide a copy.
(C) If there is an existing Collective Bargaining Agreement in place, please provide which labor union is party to the Agreement.Answer: There is currently no existing Collective Bargaining Agreement in place on the current contract.
Q and A # 92
QuoteQuestion: Section H.16, subsection (b) provides that “The Contractor shall maintain in a current status throughout the life of the contract the Labor Harmony Agreement entered into prior to the award of this contract......“. Does this provision apply only if there is an existing Labor Harmony Agreement in place under the current contract?
Answer: See revised Term and Condition
Q and A # 93
QuoteQuestion: In Section H.16, subsection (b), please confirm:
(A) whether offerors must have a Labor Harmony Agreement and/or provide evidence of such Labor Harmony Agreement to be deemed responsive to the solicitation.
(B) Please clarify what offerors are expected to provide, given that not all offerors have service employees currently providing services covered under the existing contract. It is unclear how such offerors would be able to enter into a Labor Harmony Agreement as they have no current service employees, no unionized workforce, and no presence of a labor organization currently demonstrating intent to represent such service employees.Answer:
There is no solicitation requirement to submit a Labor Harmony Agreement during the competition. Once an apparent awardee is selected, if a labor organization has demonstrated intent to represent the employees of the apparent awardee, then it will be expected that the apparent awardee enter into a Labor Harmony Agreement prior to contract award. If there has been no demonstrated intent to represent the employees prior to contract award, then the contractor would be expected to comply with H.16 once it becomes aware of demonstrated intent to represent its employees.
See revised Proposal Instructions.
Q and A # 94
QuoteQuestion: If Section H.16 requires all offerors to enter into a Labor Harmony Agreement, with which union or unions would the offeror be required to negotiate such an agreement?
Answer: H.16 does not require all offerors to enter into a Labor Harmony Agreement prior to submission of proposals. H.16 contemplates the apparent awardee entering into a Labor Harmony Agreement if it has seen demonstrated intent to represent. If it has not noted a demonstrated intent to represent prior to contract award, then it would need to comply with H.16 requirement if/when it does see a demonstrated intent to represent its employees.
Q and A # 95
QuoteQuestion: If Section H.16 requires all offerors to enter into a Labor Harmony Agreement, any union with which such Labor Harmony Agreement(s) is/are entered into as part of this bidding process would appear to have substantial influence in which bids are responsive or evaluated favorably. Please clarify any steps the agency is or has taken to avoid any actual or perceived unfair competitive advantage or improper influence.
Answer: H.16 does not require all offerors to enter into a Labor Harmony Agreement prior to submission of proposals. H.16 contemplates the apparent awardee entering into a Labor Harmony Agreement if it has seen demonstrated intent to represent. If it has not noted a demonstrated intent to represent prior to contract award, then it would need to comply with H.16 requirement if/when it does see a demonstrated intent to represent its employees.
Q and A # 96
QuoteQuestion: If Section H.16 requires all offerors to enter into a Labor Harmony Agreement, many otherwise qualified offerors could be eliminated from competition. Please clarify any steps the agency is taking or has taken to assure adequate competition.
Answer: H.16 does not require all offerors to enter into a Labor Harmony Agreement prior to submission of proposals. H.16 contemplates the apparent awardee entering into a Labor Harmony Agreement if it has seen demonstrated intent to represent. If it has not noted a demonstrated intent to represent prior to contract award, then it would need to comply with H.16 requirement if/when it does see a demonstrated intent to represent its employees.
Q and A # 97
QuoteQuestion: With regard to Section H.16, subsection (c), please clarify what conduct constitutes as a labor organization’s “demonstrated intent” to represent service employees that would trigger a contractor’s obligations to notify the CO and commence negotiations of a Labor Harmony Agreement?
Answer: The definition is provided in Section H.16(a).
Q and A # 98
QuoteQuestion: Please confirm a contractor’s obligations under Section H.16 subsection (c) would not be triggered until contractor management has actual knowledge of “demonstrated intent".
Answer: “Actual knowledge” is not the knowledge requirement. The knowledge requirement is in Section H.16(a) which provides the standard is: “when the Contractor knows or reasonably should know.”
Q and A # 99
QuoteQuestion: Please confirm whether any labor organization has demonstrated intent to represent service employees that would trigger an offeror’s obligation to commence negotiations with such organization. If so, which labor organization(s)?
Answer:
Demonstrated intent to represent will be the unique experience of each contractor and whether a labor organization has demonstrated intent to represent its employees.
There have previously been demonstrations of intent at limited locations.
It appears that the current Maximus contract may be: # 75FCMC22C0038
I assume there must be an explanation somewhere why the options were not exercised. If someone can find it, please post. I'm going to check the remaining Q and As now. Also, it would be interesting to see the latest award fee report on Maximus. The contract type is a CPAF.
-
This is the current solicitation. 75FCMC24R0010
This is Maximus' current protest.
The LABOR HARMONY AGREEMENT is at H-16 or p. 64 of the solicitation.
-
-
-
-
Did you see some contracting effort that was well done? Tell us about it.
Did you see some contracting effort that was done badly? Tell us about it and tell us how you would make it better.
Did you see some contracting effort that was done so ugly that you hope you never see it again? Tell us about it and be a hero and improve it.
In the title of your Topic (post), state wheter it is Good, Bad, or Ugly so we can tell how you feel about it.
-
15 hours ago, formerfed said:
The number of protests now exceed 350 and a dozen protests also filed with the Court of Federal Claims. The judge recently consolidated the cases. I hope somebody in the government takes a critical look at these kinds of large IDIQ contracts in the future. The costs to both government and industry needs examined as well as substantiating the alleged benefits. Furthermore the costs and efforts involved with placing task orders need looked at as well.
Formerfed:
GAO lists 360 "actions" against that solicitation. I assume that those actions are protests and many of the protests were sustained (I seem to remember over 60 sustained protests.) The solicitation was a GWAC which requires OMB approval.
I can think of two ways for GAO to deal with all these protests.
1. Where a number of dismissed or withdrawn protests complain about a similar issue, GAO (if the courts are eliminated) could consider whether a potester or protesters actions undermine the integrity and effectiveness of our process and suspend the protesters from submitting protests in the future.
2. Since this is a GWAC approved by OMB and there are so many sustained protests GAO may wish to recommend that OMB withdraw its GWAC approval from the issuer of the solicitation.
A Primer on U.S. Defense Procurement by Daniel Schoeni, Space Systems Command; George Washington University - Law School
in Recommended Reading
Posted
A Primer on U.S. Defense Procurement, 2 Upphandlingsrätt Tidskrift 87 (2024)
Daniel Schoeni, Space Systems Command; George Washington University - Law School, June 28, 2024
U.S. defense procurement is fiendishly complex; this article demystifies the system. It provides an introduction for nontraditional suppliers who may be reluctant to participate. To this end, it outlines the mechanics, details the legal framework, and assesses the system’s viability. The penultimate section advocates greater transatlantic participation, discusses barriers, and suggests how foreign suppliers can engage more effectively. If more robust competition is achieved, the potential payoff is immense for taxpayers, contractors, and not least the warfighter.
A Primer on U.S. Defense Procurement, 2 Upphandlingsrätt Tidskrift 87 (2024)